STATE (NCT OF DELHI) ….. Respondent
Through: Ms.Kusum Dhalla, APP for the
State with ASI Jaiveer Singh PS
Khajuri Khas

CORAM:
HON’BLE MS. JUSTICE PRATIBHA RANI

JUDGMENT

1. The present appeal is directed against the judgment dated 25th
May, 2016 and order on sentence dated 26 th May, 2016 whereby the
appellant has been convicted for committing the offence punishable
under Section 363/366/377 IPC and sentenced as under:-

(i) Under Section 363 IPC R.I. for a period of 7 years with fine
of ` 2,000/- and in default, to
undergo SI for one month

(ii) Under Section 366 IPC R.I. for a period of 7 years with fine
of ` 2,000/- and in default, to
undergo SI for one month

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(iii) Under Section 376 IPC R.I. for a period of 7 years with fine
of ` 2,000/- and in default, to
undergo SI for one month

All the sentences were directed to run concurrently.

2. The case FIR No.307/2011 was registered on 24th September,
2011 when Sh.Ali Ahmed, father of the prosecutrix reported that his
daughter ‘S’ (name withheld to protect the identity) aged 14 years had
been missing since 23rd September, 2011 and he suspected his
neighbour Babul (appellant herein) to be behind missing of his
daughter and that he might have enticed her away. Initially the FIR
was registered under Section 363 IPC. School leaving certificate as
age proof of the prosecutrix was produced by her father wherein her
date of birth has been recorded as 6th July, 2000. On 27th September,
2011, Sh.Munna, father of the appellant produced his son as well the
daughter of the complainant before the Investigating Officer SI Anuj
Kumar (PW-8) after bringing them to Delhi from Moradabad, UP. The
prosecutrix ‘S’ was sent for medical examination and also produced
for getting her statement Ex.PW2/A recorded under Section 164
Cr.P.C.

3. After the medical examination of the prosecutrix was conducted
and her statement under Section 161 CrPC was recorded, Sections
366/376 IPC were also added. After the completion of investigation,
chargesheet was filed against the appellant/accused.

4. On the basis of evidence adduced by the prosecution, the
appellant has been convicted for committing the offence punishable

5. Challenging the conviction of the appellant under Section
363/366/376 IPC and the order on sentence, learned counsel for the
appellant submitted that the prosecutrix left the house of her aunt of
her own as her father wanted to sell her to some other person but she
was in love with the appellant. Fearing that she might be sold to a
stranger, she left her house of her own to perform Nikaah with the
appellant and had consented to have physical relations with him.
Learned counsel for the appellant has referred to the statement
Ex.PW2/A made by the prosecutrix under Section 164 Cr.P.C.
wherein she has specifically stated about the reason of leaving her
house and the physical relations with the appellant were made by her
with free consent. Even on her MLC Ex.PW9/A prepared by PW-9
Dr.Divya Pandey the alleged history given by PW-2 is of having
physical relations with consent. Learned counsel for the appellant has
also submitted that the appellant as well as the prosecutrix both belong
to Muslim community where the age of Nikaah is the age of attaining
puberty. It has also been contended that though the Nikaah was
performed but the appellant is not having the proof as he is in judicial
custody. In view of the statement of the prosecutrix about being a
consenting party and leaving the house of her own to accompany the
appellant, the appellant could not have been convicted under Section
363/366/376 IPC.

6. On behalf of the State, learned APP has contended that as per
the School Leave Certificate seized vide memo Ex.PW1/B, the date of

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birth of the prosecutrix is 6th July, 200 which proved her age to be 11
years at the time of incident. The prosecutrix being minor at that time,
the consent, if any, given by her is immaterial. Learned APP has also
submitted that during her examination before the Court as PW-2 she
has stated that the physical relations with her was without her consent
and in view thereof the impugned judgment and the order on sentence
may be upheld.

7. I have considered the rival contentions and carefully gone
through the record. The prosecution examined 13 witnesses in all to
substantiate the charges. The material witnesses are the PW-1, the
father of the victim and complainant of this case; PW-2, the
prosecutrix and PW-8, SI Anuj Kumar who conducted the
investigation.

8. In the instant case the main issue that arises for consideration is
the age of the prosecutrix (PW-2, ‘S’) PW-8, SI Anuj Kumar has
proved the following facts:-

(i) Investigation of case FIR No.307/2011 under Sections
363/366/376 IPC PS Khajuri Khas, which was registered on 24th
September, 2011 on the statement made by the complainant Ali
Ahmed, PW-1 was conducted by him.

(ii) The copy of the school leaving certificate of the victim was
handed over to him by the complainant on 26th September, 2011
which was seized by him vide seizure memo Ex.PW-1/B. As per the
school leaving certificate the date of birth of the prosecutrix is 6th July,
2000. On 27th September, 2011 the appellant/accused as well as the
prosecutrix were produced before him by the father of the

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accused/appellant. After informing her parents, he (the Investigating
Officer -PW-8) interrogated them in the presence of a lady Constable
Santosh and Constable Hawa Singh. Thereafter, both of them were
sent for medical examination. PW-2 was also produced before the
learned Magistrate on 28th September, 2011 for recording her
statement under Section 164 Cr.P.C. which is Ex.PW-2/A.

(iii) Thereafter, the prosecutrix was produced before the CWC on
29th September, 2011 and under the order of CWC she was handed
over to her parents.

9. Statement of prosecutrix under Section 164 Cr.P.C. is Ex.PW-
2/A wherein she has stated that she was in deep love with Babul, the
accused but her Chachi did not let her meet Babul. After taking `10
from her Chachi and without telling anybody, she accompanied Babul
to Moradabad, UP as they wanted to perform Nikaah. She also stated
that she had physical relations with him with her consent and wanted
to live with him but her parents were against this Nikaah. They had
even gone to the Court but she being below 18 years of age, their
Court Marriage could not be solemnized. She specifically stated that
physical relations were made by the appellant/accused with her
consent.

10. At the time of her medical examination at GTB Hospital while
mentioning her age to be 14 years she has given the history to the
following effect:-

Alleged h/o missing from home since 23/9/11 to 26/9/11.
Brought for medical examination
H/o sexual contact with a boy from neighbourhood,
contact made with her consent- As told by the girl.
Last contact made 2 days back. Patient has taken bath,
passed motion passing urine after last contact.”

She refused for her internal medical examination which was
duly informed to her mother, who accompanied her to the hospital.

11. Since the appellant/accused is also not disputing that the
prosecutrix had accompanied him to Moradabad, UP and he had
physical relations with her consent and further that both of them were
brought from Moradabad to Delhi and produced before the police by
his father, the only issue that is relevant for deciding this appeal is the
effect of consent by a girl under 16 years of age. First of all it is
necessary to mention that no Nikaahnama is on record on the basis of
which the appellant could have taken the plea that the age of puberty
is relevant for performing Nikaah and she having attained the age of
puberty her consent has to be given weightage.

12. No doubt as per the date of birth recorded in the School Leaving
Certificate she was about 11 years of age at that time but her father at
the time of lodging missing report vide DD No.5A Ex.PW-11/A has
given the age of his daughter to be 14 years and before the Court he
has also stated that he got married in 1996 and the prosecutrix
was born in the year 1997 which shows that she was about 14
years of age at the time of accompanying the appellant. While
making statement under Section 164 CrPC, the prosecutrix has given
her age to be 14 years and the same is recorded on MLC. So at best

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appellant can claim that the prosecutrix was not 11 years old but 14
years old at the time of occurrence which is below the consenting age.

13. The appellant has been convicted for the offence punishable
under Section 363/366/376 IPC. As regards, charges under Section
363/366 IPC are concerned, the prosecution was required to prove that
the appellant had taken or enticed the prosecutrix out of the lawful
guardianship of her parents. Kidnapping is defined under Section 361
of the Indian Penal Code with the object to protect the minor children
from being seduced for inappropriate purposes as well to protect the
rights and privileges of the guardians having lawful custody of their
minor children. If the minor leaves her parental home without any
promise, efforts or enticement, it cannot be said that an offence of
kidnapping is proved. In the instant case the prosecutrix was at the
house of her aunt. She had specifically stated in her statement under
Section 164 Cr.P.C. that she took ₹10 from her aunt and left her house
without telling anyone. She has also stated that she had left her house
to perform Nikaah with the appellant with her free will as her father
wanted to sell her to some other person for the reason that the accused
was not having the financial capacity to pay ₹2 lakhs demanded by her
father as a condition to perform her Nikaah with him. Not only at the
time of her medical examination but also while making statement
under Section 164 CrPC before the learned Metropolitan Magistrate,
she narrated the above facts.

14. It is a matter of record that prosecutrix was handed over to her
parents by the Child Welfare Committee. Thereafter when she
appeared as a witness and examined as PW-2, she had given entirely

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different version which has no foundation as it appears to be under
parental pressure or an afterthought. Her deposition before the Court is
in contrast to her version before the learned Magistrate recorded in the
statement under Section 164 CrPC Ex.PW2/A.

15. In order to prove a charge under Section 366 Indian Penal Code
the prosecution was required to prove that the kidnapping of the
prosecutrix was with intent that she may be compelled to marry any
person against her will or that she may be forced to seduce to illicit
intercourse or knowing it to be likely that she will be forced or
seduced to illicit intercourse. It is a case where the prosecutrix has
admitted that she was in deep love with the accused and wanted to
marry and live with him. They even tried to perform Court marriage
but she being under 18 years of age, it could not be registered. Thus,
the three reasons given by her to leave her home without inducement
and accompanying the accused to Moradabad (U.P.) are as under:

(i) She being in love with the accused;
(ii) The accused being not able to meet the demand of ₹2 lakhs as a
condition to perform Nikaah;

(iii) Her father’s intention to perform her Nikaah against her will
with some other person for monetary consideration.

16. Therefore, it cannot be said that the appellant kidnapped/taken
the prosecutrix with him out of the lawful guardianship of her
parents/aunt so as to force her or seduce to illicit intercourse. The facts
and circumstances of the case and even her MLC proved that she was
a consenting party to sexual intercourse with the appellant.

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17. The conviction of the appellant for the offence punishable under
Section 363/366 IPC cannot be sustained in view of the legal position
laid down in the various decisions of this Court. In the case Chida
Ram vs. State 1992 Criminal Law Journal 4073, the prosecutrix went
to the P.S. and lodged report that she had gone with the
petitioner/accused, of her own accord. However, during trial, she
deposed that she was forced by the accused/petitioner to go to the
police station. She had also given statement before a Magistrate after
lodging report with the police and in that statement she did not say
that she was forced by the accused/petitioner to go to the Police Post
and lodged the report. A learned Single Judge of this Court observed
that she had ample opportunity to say before the Magistrate, before
whom she was produced at the first instance, that she was forced by
the accused to go to the Police Station and lodged report. The story set
up by her during trial was considered to be an afterthought and was
not believed. It was found that she was a consenting party in eloping
from her house with the accused/petitioner. It was held that it could
not also be called a case of kidnapping.

18. In the decision reported as Mahabir vs. State 55 (1994) DLT
428, the appellant and the prosecutrix were known to each other. The
appellant took the prosecutrix to a place outside Delhi where they
stayed for about fifteen days and had sexual intercourse with each
other. The appellant was convicted under Sections 366 and 376 of
I.P.C. A learned Single Judge of this Court noticed that she had gone
to Railway Station, had stood there with the appellant who also went
to purchase tickets and then she had travelled with him in a

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compartment shared by other persons. She had then gone to a house in
a tonga and yet she did not lodge any protest and made no attempt to
flee despite having ample time and opportunity. The learned Single
Judge noted that on the day of reckoning, she surely had crossed mark
of sixteen years and since she was all along a willing party, the
appellant was acquitted of both the charges against him. Thus, despite
the prosecutrix being less than eighteen years of age, the appellant was
acquitted not only of charge under Section 376 but also of the charge
under Section 366 of I.P.C.

19. In the case Bala Saheb vs. State of Maharashtra 1994 Criminal
Law General 3044, it was found that the prosecutrix accompanied the
appellant/accused from her village and stayed with him for two to
three days. It was held that these circumstances clearly show that
offence under Section 363 or 366 of I.P.C. was not made out.

20. Reverting to the facts of this case, the appellant and the
prosecutrix were staying at Moradabad, UP from where the father of
the appellant brought them to Delhi and produced before the IO.
Neither of them tried to run away anywhere except to settle at the
native place of the appellant nor showed any resistance when father of
the appellant wanted them to accompany him and produced them
before the IO as FIR was registered in this case. Thus, it is a case
where no offence under Section 363/366 IPC can be said to have been
proved against the appellant. Hence, he is acquitted of the above
charges.

21. Section 376 IPC prior to the amendment carried out w.e.f.
February 03, 2013, provided that the offence of rape of a woman

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under 16 years of age with or without her consent was punishable with
imprisonment of not less than seven years but which may extend for
life or for a term which may extend to ten years and payment of fine,
provided, the Court may, for adequate and special reasons to be
mentioned in the judgment, impose a sentence of imprisonment for a
term of less than seven years.

22. The age of the prosecutrix being 14 years at the time of
occurrence, charge for the offence under Section 376 IPC stands
proved against the appellant/accused. She was less than 16 years of
age at that time hence her consent was immaterial.

23. Learned counsel for the appellant has submitted that keeping in
view that it was a case where the prosecutrix voluntarily accompanied
the appellant to be his wife but there is no proof available with the
appellant that Nikaah was performed, it can be considered as a special
reason to award a sentence lesser than the minimum prescribed under
Section 376 IPC.

24. This Court in the decisions reported as Mahabir Vs. State 55
(1994) DLT 428; Mohd.Imran Khan and Jamal Ahmed Vs. The State
2010 Cri LJ 1756; Bunty Vs. State (GNCT) of Delhi
MANU/DE/0964/2011 wherein the prosecutrix had accompanied the
accused of her own sweet will and had sexual intercourse with consent
despite the fact that she had not attained the consenting age, had
considered it to be a special reason and discretion was exercised to
award the sentence below the statutory minimum.

25. In the facts and circumstances of the case and the view taken by
the coordinate Benches of this Court in the decisions referred to

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above, while maintaining the sentence of fine of `2,000/-, the
substantive sentence of 7 years awarded to the appellant for
committing the offence under Section 376 IPC is reduced to 5 years.

26. The appeal stands disposed of in above terms.

27. LCR be sent back alongwith copy of this order.

28. Copy of this order be sent to the concerned Jail Superintendent
for information and compliance.

29. Appellant be also informed through the concerned Jail
Superintendent.